Was there state collusion in the killing of Rosemary Nelson, the solicitor who was blown up by loyalists at her home in Lurgan in 1999?
Two very different answers to that question were put forward in the Commons this week, following the report of the inquiry into her death.
For Northern Ireland Secretary Owen Paterson, the report was fundamentally reassuring:
it is clear that just as Lord Saville found no evidence of a conspiracy by the British state, and just as Lord MacLean found no evidence of state collusion in the murder of Billy Wright, so this panel finds no evidence of any act by the state which directly facilitated Rosemary Nelson’s murder.
In contrast, Paterson's shadow (and predecessor) Sean Woodward, regarded the report as damning:
The question that the Secretary of State must address is whether those acts of omission, negligence, failure and prejudice and a mechanistic Northern Ireland Office mean that we are in a very different position from the conclusion of the Wright inquiry, contrary to his statement today. I urge him to examine Justice Cory’s original proposals for the inquiries. Collusion is not just a matter of commission; it may also be an issue of omission. This does not prove collusion, but today the Secretary of State has been too hasty in his dismissal.
Canadian judge Peter Cory was appointed in 2002 to look at six cases in which collusion by either British or Irish state forces was suspected. His report was published in 2004, only after a delay which led Cory to notify some of the families involved directly that he had recommended inquiries.
One likely source of official discomfiture was the definition of collusion in the Cory Reports:
There cannot be public confidence in any government agency that is guilty of collusion or connivance with regard to serious crimes. Because of the necessity for public confidence in government agencies the definition of collusion must be reasonably broad when it is applied to such agencies. That is to say that they must not act collusively by ignoring or turning a blind eye to the wrongful acts of their servants or agents or by supplying information to assist those servants or agents in their wrongful acts or by encouraging others to commit a wrongful act.
Any lesser definition would have the effect of condoning or even encouraging state involvement in crimes, thus shattering all public confidence in governmental agencies.
It may be that the very wide definition of the word collusion that Judge Cory adopted was due to his concentration on one of the synonyms, namely the verb connive. We have been concerned throughout the Inquiry by the width of the meaning applied by Judge Cory, having in mind in particular that the word is not to be found in our Terms of Reference. For our part we consider that the essence of collusion is an agreement or arrangement between individuals or organisations, including government departments, to achieve an unlawful or improper purpose. The purpose may also be fraudulent or underhand. It seems to us that the situations envisaged by Judge Cory in paragraphs 3.187 to 3.189 of his Report, especially those in which he refers to prison services or the NIPS ‘turning a blind eye’, would amply be covered by the Terms of Reference without attempting to analyse them in terms of collusion. We have in mind here ‘wrongful acts or omissions’, including attempts, which ‘facilitated his [Billy Wright’s] death’, whether ‘intentional or negligent’.
Following the publication of the Wright report, the local DUP MP David Simpson commented appositely:
The Secretary of State in presenting the report to the House of Commons was keen to emphasise the point that there was no collusion in the murder of Billy Wright between the agencies of the state and those who cut him down. This might have something to do with the way in which collusion was defined in the report presented today. The facts as established presently will lead people to draw very different conclusions from Owen Paterson.
Rosemary Nelson also died in Simpson's Upper Bann constituency. Although he was prepared to take Owen Paterson's statement at face value this time, the case raises very similar issues.
In his original report on the Nelson case, Judge Cory stated:
In determining whether there are indications of state collusion in the murder of Rosemary Nelson it is important to look at the issue from two perspectives. First it must be seen whether the documents indicate that the action or inaction of the government agencies might have directly contributed to the killing of Rosemary Nelson. Secondly it is necessary to examine collusive acts which may have indirectly contributed to the killing by generally facilitating terrorist activities. That is the evidence may reveal a pattern of behaviour by a Government agency that comes within the definition of collusion. This evidence may add to and form part of the cumulative effect which emerges from a reading of the documents. In this case it will be important to consider whether the documents reveal that Government agents or government agencies turned a blind eye to threats which were being made against the life of Rosemary Nelson. It must be determined whether the failure of Government agencies to protect Rosemary Nelson, in light of the threats that they were aware of, constituted collusion. If the Government knew that Rosemary Nelson’s life was in danger, yet took no steps to ensure her safety, this could constitute collusion. State sponsored protection was available to individuals on a discretionary basis. Obviously if this protection could have saved Rosemary Nelson’s life, the failure of Government officials to provide it was an act or omission that could have facilitated her murder by terrorist paramilitaries.
Neither the inquiry's terms of reference nor its conclusions mention the word collusion. Yet its findings are presented in a manner that can be clearly mapped on to Cory's two perspectives.
The report states:
There is no evidence of any act by or within any of the state agencies we have examined (the Royal Ulster Constabulary (RUC), the Northern Ireland Office (NIO), the Army or the Security Service) which directly facilitated Rosemary Nelson’s murder.
It goes on to add:
There were omissions by state agencies, which rendered her more at risk and more vulnerable. The two agencies of the state that had ample knowledge of Rosemary Nelson were the RUC and the NIO.
The conclusions also highlight a pattern of activity that increased the threat to Nelson, including an assault on her by RUC officers, the leaking of intelligence, and threats made to her clients.
Many will conclude this pattern represents collusion in the terms described by the Cory report. Owen Paterson's panglossian reaction to the inquiry's findings depend upon a semantic rearguard action that seeks to narrow those terms in exactly the way Judge Cory warned against. It seems the Northern Ireland Office still cannot go beyond the 'mechanistic response' for which it has been damned by the Nelson Inquiry.